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The Standards of Property

Much scholarly attention has been paid recently to the optimal design of legal norms as constituting either clear-cut “rules” or open-ended “standards.” The reemergence of formalist thought across schools and ideologies calling to reinforce a more rule-based regime in various legal fields has been increasingly challenging the substantive, contextual jurisprudence that had largely dominated the twentieth century.

The study of legal standards versus rules in property law remains, however, quite limited, focusing mainly on specific aspects such as the remedy-based property rule/liability rule discourse, the debate whether the right to exclude represents the inherent “core” of property rights, and the renewed interest in the structural numerus clausus principle. This Article offers an innovative, comprehensive analysis of the ways in which legal standards operate in property law. It identifies the distinctive manner in which the chief justifications for standards, i.e. incompleteness of rights and enhancement of substantive value-based design and interpretation of norms, play out in property law. Cutting across conventional public law / private law distinctions, by referring to various standards such as “trade usage,” “custom,” “reasonableness,” “abuse of rights,” or “public use,” the Article shows that legal standards hinge prominently on the institutional mechanisms by which such norms are crafted and enforced, and identifies the conditions under which property standards may outperform hard-edged rules.

Considering the unique trait of property rights as implicating numerous and often indefinite interest holders, and hence the need for broad-based coordination in designing the content of property legal standards over time, the Article looks at the ways in which such standards can be filled with content by either bottom-up norms such as group-based customs, values, and understandings, or rather by top-down bodies such as courts.

In essence, in order for property legal standards to work effectively, bottom-up and top-down decisionmaking institutions, working exclusively or conjointly, must systemically guide actors through the often inevitable incompleteness of rights and the dynamic nature of value-based norm-setting, without bringing property to the brink of excessive instability and insecurity that have led to the backlash of new formalism.